Federal judges are announcing future vacancies at historic lows ahead of Election Day

As President Donald Trump has nominated a number of judges over his four years in office, and as Senator Mitch McConnell has led efforts in the Senate to ensure that those judges are confirmed, judicial vacancies have fallen significantly. But another thing that’s also dropped off—the number of federal judges announcing future vacancies.

We can look at “future judicial vacancies,” reported by the Federal Judicial Conference, to see how many federal judge have future vacancy plans. Some have announced a retirement date or a plan to take senior status; others announce plans to retire or take senior status upon confirmation of a successor; other non-Article III judges have a term that expires on a particular date; and still others have been nominated for a different court, and the vacancy will arise upon their confirmation to that court. Those announcements could be months into the future.

We can track the historic “future vacancies” recorded as of November 1 in an election year (cheating a bit to include October 23, 2020 at the moment, but I’ll update if there’s a change by November 1).

1992: 3

1996: 14

2000: 11

2004: 23

2008: 19

2012: 19

2016: 17

2020: 2

(Edit: my original number, 3, included the vacancy on the Seventh Circuit caused by the (anticipated) elevation of Justice Amy Coney Barrett to the United States Supreme Court. She was elevated before November 1, dropping the total to 2.)

There are a number of possible explanations. It could be over political calculus, as Democratic-appointed judges hold on to their terms to see the outcome of the election, and Republican-appointed judges who wanted to retire already have done so. It could be that there are simply fewer announcements, and more judges simply retire with less public anticipation. Fewer judges are being elevated right now because essentially all the appellate court seats are filled, meaning fewer lower-court vacancies. The Senate in the past may have moved more slowly in an election year when the president was of a different party. Judges feel an increased obligation to remain in place during the pandemic to minimize what’s already a disruptive time. Some judges also announce their retirement contingent on confirmation of a successor, and perhaps those have been filled at higher rates.

In short, I don’t have terrific explanations except to name a bunch of ideas. But the low number of announced future vacancies struck me as noteworthy.